If you are stuck in such a situation, here is what to do.

Mr. Sameer Verma recently fulfilled his dream of buying a new home by purchasing a flat on an upper floor of a newly constructed tower in the city of Alipur. He completed the registration process just last week. However, his joy was short-lived. In his haste to finalize the deal, he overlooked several issues with the build quality. Upon closer inspection, he discovered multiple air cracks on the walls, especially around the door frames. Some cracks were superficial, but a few were deep enough to be visible on both sides of the wall, indicating potential structural problems.

Concerned, Mr. Verma immediately contacted the builder, “Apex Constructions Ltd.” They acknowledged the issue and assured him that their team would fix the cracks. However, Mr. Verma is now deeply disappointed and has lost faith in the builder’s quality of work. He is contemplating two courses of action. First, he is considering hiring an independent civil engineer to assess and properly repair the damage before he moves in, and then sending the bill to the builder. Second, he has learned that an identical flat on the floor below is still available and appears to be in much better condition. He wonders if it’s possible to swap the flats, even though the registration for his current unit is complete. He is willing to bear any additional administrative costs for this change.

Advice in such cases

Discovering defects in a newly purchased property can be distressing. However, as a homebuyer, you have several legal rights and remedies available.

• Document Everything: Immediately take clear photographs and videos of all the cracks and defects from various angles. This will serve as crucial evidence.
• Professional Assessment: Get a formal report from a certified and independent civil or structural engineer. This report will professionally assess the severity of the defects and suggest the correct remedial measures.
• Formal Communication: Do not rely on verbal assurances. Send a formal written communication, preferably a legal notice drafted by a lawyer, to the builder detailing the defects, attaching the expert’s report, and stating your demands.
• Evaluate Your Options: Swapping a flat after registration is a complex process. It would essentially require cancelling the current sale deed and executing a new one for the other flat, which involves significant costs like stamp duty and registration fees again. The builder’s consent is mandatory. The more practical approach is to hold the builder accountable for rectifying the defects as per the expert’s recommendations or seek compensation.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think

Applicable Sections of Law

Several laws protect homebuyers in India. The primary statutes applicable in such cases are:

• The Real Estate (Regulation and Development) Act, 2016 (RERA): Section 14 of RERA makes the promoter (builder) responsible for rectifying any structural defects or other defects in workmanship, quality, or provision of services brought to their notice within five years from the date of handing over possession, without further charge.
• The Consumer Protection Act, 2019: A homebuyer is a ‘consumer,’ and the flat is a ‘good.’ Poor construction quality amounts to a ‘deficiency in service’ and a ‘defective good.’ You can file a complaint in the appropriate Consumer Dispute Redressal Commission for compensation, repair of defects, or even a refund.
• The Indian Contract Act, 1872: The agreement for sale is a contract. If the builder has not delivered the property as per the agreed-upon quality and specifications, it is a breach of contract, for which you can claim damages.

If you are the complainant

If you decide to take legal action as the complainant, you must proceed systematically.

• Gather All Paperwork: Collect all relevant documents, including the Agreement for Sale, Sale Deed, payment receipts, all email and written correspondence with the builder, and the brochure or any other promotional material that promised a certain quality.
• File a Complaint with RERA: The state Real Estate Regulatory Authority is the primary body for such disputes. Filing a complaint with RERA is often faster and more effective for issues related to construction defects.
• Approach the Consumer Forum: You can also file a case with the District, State, or National Consumer Dispute Redressal Commission, depending on the value of your flat and the compensation claimed.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think

If you are the victim

As the aggrieved party or victim of poor construction quality, it is vital to know your rights and act to protect your investment.

• Review Your Agreement: Carefully read the ‘Agreement for Sale’ and the ‘Sale Deed’. These documents contain clauses regarding the builder’s liability for structural defects and the specifications of the flat.
• Do Not Accept Temporary Fixes: Do not let the builder perform superficial patchwork that merely conceals the problem. Insist on a proper, lasting solution as recommended by your independent expert.
• Seek Appropriate Remedy: Your goal could be getting the defects repaired to a high standard at the builder’s cost, receiving monetary compensation for the loss in property value and mental agony, or, in severe cases of major structural flaws, seeking a complete refund with interest.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think

How the police behave in such cases

This is primarily a civil dispute, not a criminal one. The police have a very limited role and will generally not register an FIR for construction quality issues. They will advise you to approach the civil courts, RERA, or the Consumer Forum. Police intervention may only occur if there is a clear element of criminal fraud or cheating that can be established, such as the builder knowingly using substandard materials with the intent to deceive from the outset, which falls under Section 318 of the Bharatiya Nyaya Sanhita (BNS). However, proving this criminal intent is very difficult.

FAQs people normally have

Here are some frequently asked questions in such situations:

• Can the builder be forced to give me another flat? No, you cannot force the builder to swap the flat after the sale deed is registered. This can only happen with the mutual consent of both you and the builder and would require executing a deed of cancellation for the old flat and a new sale deed for the new one.
• What is the ‘defect liability period’? Under RERA, the builder is responsible for fixing any structural or workmanship defects that appear within five years of handing over possession to the buyer.
• Can I stop my remaining payments to the builder? This is not advisable without legal counsel. Stopping payments might be considered a breach of contract on your part, which could weaken your case. It is better to continue payments (if any are due) and seek legal remedies for the defects separately.

What evidence is required?

Strong evidence is the backbone of any legal case. You will need:

• The Sale Deed, Agreement for Sale, and allotment letter.
• All receipts and proof of payments made to the builder.
• Clear, dated photographs and videos of the cracks and other defects.
• A detailed assessment report from an independent and qualified structural engineer or architect.
• Copies of all written communication with the builder, including emails, letters, and the legal notice sent.

How long will the investigation take?

Since this is a civil matter, there is no police “investigation.” The duration depends on the legal forum you choose. RERA and Consumer Commissions are designed for speedier resolutions compared to traditional civil courts. RERA authorities are mandated to dispose of cases within 60 days, but in practice, it can take a few months to a year depending on the complexity of the case and the workload of the authority. Consumer cases may also take a similar amount of time. A well-documented case with clear evidence can significantly expedite the process.

Advocate Sudhir Rao, Supreme Court of India