leavinggoa

British couple ordered to leave country

http://oheraldo.in/node/25311

Douglas M

Hi leavinggoa,

Interesting, but no great surprise to us.

The penultimate para contains similar wording to my exclusion letter, ie the general permission provided by FEMA for FNs to purchase immovable property providing the FN is deemed resident, has been ignored in that statement.

Interestingly, the mamlatdar in panjim said the same thing to me when i chased my mutation application. He also understood that specific RBI permission was required before a FN could purchase.

So, now we have misinformation coming from both sides.

regards

douglas

noni

Go on Douglas, make my day, tell me that my Goan Will is usless as well.

Tony, not declaring myself for a bun - I am not that cheap - a very large Vodka and orange, and you might be in luck.

Regards Noni

TONY P

Hi Noni
You haven't tasted my buns, however if you would prefer vodka so be it.
See you about
Regards
Tony

Douglas M

Hi noni,

A will is a worldwide document, so if you already have one written in uk, it can cover assets held elsewhere.

As i undestand it, under goan/ portugese law you cannot disinherit your children, so that part of the will, if such a clause existed, would be invalid in goa.

Anything else should stand, i dont know if its a good idea to have a separate will written in goa as it may confuse the issue, if different from your uk one ( if you already have a uk one, which everybody should).

Furthermore, english law says last will and testament stands, so one could effectively cancell out the other .

I would take further advice in uk.

To everybody, If you havnt already made a will , make one.

if your uk domiciled and your combined estate is higher in value than the nil rate band for iht and you are married, consider including a discretionary trust in the will in order to utilise two nil rate bands rather than one. Thus saving £100k + in iht.

If you take this discretionary will trust route, ensure that you equalise your estates and any assets held as joint benificial owners are now held as tenants in common, otherwise it wont work .

If any reader checks this out with a decent uk lawyer and find it is applicable to you, please pay a minimum of £100 to your favourite charity , as i would have charged you more than that for the same advice had i still been in practice.


regards

douglas

a_f_d

which reminds me - I did hear that the 28 days max on charter flights/hols has been scrapped (good news) - does anyone know?

a_f_d

... and the dates in the article are interesting:
"purchased property in Goa in 1999"
"had come to India on employment Visas (Type X) in September 2004"
"which they claimed was [valid] up to August 30, 2007"
"ordered to leave the country by May 10, 2007"
- apparently this was some time in June.

So they bought property before they came here,
on a three year visa
which was both an Employment Visa and Type X
and they've been ordered to leave by time machine!

TDK

Hi Guys & many thanks for your warm welcome to te forum and for all your responses to my Qs.

Remy, it makes sense to me what you said about being able to sell on a Lease agreement (with freehold deeds pending), & whilst i agree with you that this will probably soon become alot harder (to sell to FNs) when the penny drops about freeholds etc; still, from what i gather Goa is now a prime holiday home hot spot for domestic Indians and NRIs/PIOs (& i rechecked the FAQs on the RBI site as you suggested, which states that FNs can resell to Indian Nationals, NRIs & PIOs but with prior RBI approval), so that leaves a sizeable resell market!(although i assume they meant selling the freehold not leasehold)(?) However i didn't get RBI permission before i purchased on my Agreement of Sale (as was advised not necessary), so i hope that won't be a problem if i need to sell the lease on in the future(?)

Thanks also Tony for your reply and i take your point on board & i guess although 'bendable rules' can come in handy every now and then, it sure as hell'd make things alot easier for us all if they were black and white! Still Sally49 said earlier on that Corrupion in India is endless and goes all the way up the line (not least in Bihar which i think makes Goan law implementation seem almost transparent)!

Douglas, many thanks for takin the time to direct me to the posts you recommended i read (and i assume 'D' refers to yourself)? I will scour those pages in a moment.

Thanks also for lettingme know that Leases aren't automatically transferable or renewable. However, guessing this i already paid my Goan lawyer severalmonths ago to draw up a Draft Lease agreement and i had requested he included clauses to allow for my/any future buyers' right to renew the 5 year lease term at no extra charge ad infinitum (assuming i live that long) and also for the lease agreement to be transferable to who ever i choose to sell it on to (with no charge to my self or any future purchasers for registering the freehold if required at any point in the future).So hopefully this will cover me(?)

Also as i would only sell my leasehold property on to an NRI/PIO or possibly an Indian National, i hope i'm right in thinking that i would be able to sell at the market rate (as they would 'inherit; the option to transfer to freehold from my lease contract, which they are fully entitled to exercise).

So it seems to me that as long as one has all the necessary clauses included in the Lease (rather than just signing the lease the developer hands you), then as long as the developer agrees to sign it (hopefully) problems in this respect will be minimized (although it seems a new problem will quickely emerge to replace each problem solved)!Anyway please correct me if i'm deluding myself!!

Anyway, Remy & Tony you'll have to keep us all updated on the dates/place for the N.Goa BE gathering (although i plan to be in Goa around Sept & not sure if i'll still be around in Dec but never say never)

Sorry for the thesis and all the Best TDK.

Douglas M

Hi TDK,

Thats a lot of stuff.

From the info you have provided it would seem that if the freeholder signs the agreement you have outlined, you should be able to sell what is left of the five year lease. At the end of the five years it would be at the discretion of the freeholder if he renews it in the name of the new lease holder.

You havnt got a perpetual lease, just max five years.

Nobody inherits the right to exercise the option to buy, that would die with the expiry of the five year lease/option agreement. Does the agreement even say you have the right to transfer the option to buy, i suspect it is just the right to transfer the lease.

Only the freeholder can offer the right to buy option and he may or may not chose to renew it with the new leaseholder.

The sales agreement you signed at outset is invalid if you were not resident at the time and you are a FN.

A five year lease is worth about one twentieth of the freehold price, as a rough guide.

I presume thefreeholder has not yet signed this agreement and you therefore have no connection to the property.

regards

douglas

TONY P

Hi All
I have a question about this, if TDK has one of those leases that are convertable to freehold ownership on fulfilment of residency etc, then if it is sold to a PIO / NRI/ or Resident Indian who don't have to fulfill residency etc and allowing that the lease contains the correct otion agreement and is transferrable, then they could convert the ownership without any problems and TDK is therefore selling that option which must make the lease worth a lot more than if it was sold to an FN. Possibly, maybe, potentially, just something that crossed my mind.
regards
Tony

Douglas M

Hi Tony,

I believe that a leaseholder cannot transfer the option to buy.

The selling process requires the agreement and participation of the freeholder, irrespective of the wishes of the leaseholder

FNs are still deluding themselves, all they have is a max five year lease like it says on the tin. The fact that they may have paid twenty times what the lease is worth dont change the underlying facts. It is denial that produces these convoluted but inappropriate solutions.

The freeholder could sell the freehold to other than a non resident FN however and he may choose to give the original FN leaseholder a cut of that. On the other hand he may choose not to.

douglas

TONY P

Aah, sorry I was under the impression that the way the lease was constructed meant that it was purely a transfer of freehold ownership and not an option to buy, as they had already paid the purchase price, but I see what you mean. Bit of a bugger really.
Tony

a_f_d

there are a number of ways of tranfering immovable property (rolling leases, power of attorney + will in favour of transferee, etc.) that used to be popular in India because they avoided Stamp Duty (4% - which is steep), but for at least the last 3 years the law has changed to require 90% of the due stamp duty to be paid in such cases - making them redundant.
Sadly (very sadly) the same Act removed the option to Register deeds &c. in Delhi (or any 'presidency town') instead of at the local sub-registrar.

Douglas M

Hi Tony,

You are almost there, the price paid is irrelevant, the injustice of the current situation also. You have to try and ignore the loss when doing the analysis.

If FNs hadnt overpaid, they wouldnt be trying to turn 5 year leases
( with or without options to buy ) into something they arent. Nor would they continue to believe that invalid sales agreements are valid.

If they had paid the correct price in the first place, denial levels would fall by 90 percent. They ( FNs) would also stop infecting others with misinformation.

It isnt only financial denial, its the inability to admit that their goan dream is flawed and goans along with it. Maybe thats an even stronger inhibitor and suppressor of the truth..

It is understandable to try and recover the loss (financial and emotional) by distorting the facts, but it is denial and denial cant change the underlying contract or restrictions on FNs.

I have to put my objectivity hat on sometimes to get down to the basics, but i seem to find it easier than most. Writing this has helped clarify my own thinking.

regards

douglas

Douglas M

Hi a_f_d,

I know you are student of these things and I thank you for the info, i did know some of it, but learn a little every day.

Overall, I am trying to make bullet point statements and so help emotionally involved people grasp the fundamentals and see it how it really is. They can then deal with their situation appropriately.

I try not to go into the fine detail for that reason.

regards
douglas