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An estimated 3-minute read

Protecting the “Less Stronger” from “Extremely Legal” agreements

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This blog specifically deals with property Agreements that are ordinarily executed between Developers, the Landlord, the Tenant and the members of the Co-operative Housing Societies. 

This blog originated when one of my dear friend Kamal Ladia approached me for studying the Re-development (proposed) agreement that was given to him by the Developer. I said-yaar I am not aware of complex development & property laws. Kamal has already took opinion from one his friend who is a Developer.

Kamal pointed out to me some hidden technical legal meaning, quite different from plain meaning, of one clause in that proposed agreement, and I found myself in utter surprise.

And I thought if one goes by the plain meaning of the clause, he will certainly be cheated. It is impossible to understand the technical legal meaning of that clause unless the man or a lawyer is well versed with those specific laws.

And I thus advised my friend as this-

Set-up your mind what specifically and broadly you seek from the Developer.  Consult with your Solicitor/Advocate to know what you are entitled to under the law.  
Once this is done, record a brief and very to the point “Letter of Offer” to the Developer thru your Solicitor / Advocate. This letter must state in very clear / categorical / unambiguous terms and language what you want from the Developer. The terms may be in the form of Option 1, Option 2 and so on.  This letter shall call upon the Developer to prepare the final Agreement in the context and backdrop of this “Letter of Offer”. This "Letter of Offer" may also be referred to as "Instrument of fundamental / core terms".

This “Letter of Offer” must be produced / manifested in verbatim in the final agreement.

The final agreement must specifically mention that this Agreement is made in pursuant to the “Letter of Offer”. The said Agreement shall also state as what Option, i.e. whether Option 1 or Option 2, the Developer has agreed to. If there is any negotiations with regard to Options, the same may be finalized and a fresh “Letter of Offer” may be prepared, without any options.

The final Agreement shall state that Parties to the Agreement have expressly agreed that all terms and conditions or any Clause of this Agreement which is found to be inconsistent or frustrating or varying or diluting the terms of “Option” so agreed in “Letter of Offer”, expressly or by necessary implication, shall be deemed to have been infected / suffering from / with “undue influence” or misrepresentation or both and not accepted by the Tenant notwithstanding he subscribe his signature to this final Agreement and the Agreement shall be voidable at the option of the tenant.

There must be a clause in the final Agreement to the effect that while interpreting the terms of this Agreement, if there appears to be conflicting meaning between the terms of the “Option” in the Letter of Offer  and terms of this final Agreement, the terms of the Option shall prevail over the terms of agreement.

The terms of the “Option” in Letter of Offer” shall demise only in one situation and that is, if any of the term of the “Option” in “Letter of Offer” is held by competent authority to be manifestly / expressly going against the laws of the land and in that scene the Developer is at liberty not bind by that term.

The efficacy of this approach is uncertain to me and the learned people who routinely deals in these kind of agreements can only offer their views on the same. And I humbly request for the same.
Sandeep Jalan (advocate)

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