Analysis of Real Estate laws in India, U.K. and U.S.A

Updated: Oct 4, 2020

PC: Bongkarn Thanyakij

Property law is the field of law which governs the various forms of real estate (land) and

personal property ownership. Property law is legally secured rights which include intellectual

property, land and personal property. Property can be traded by contract law, and one might sue the offender under tort law to defend it if his property rights are violated.

Laws pertaining to real estate in India

In India, real estate is governed by a mixture of Federal and State laws. This is because according to Article 246 of the Constitution of India, the land is the subject of state list or list-II of the 7th schedule of the constitution of India, which covers subjects for which only the state can legislate.

On the o,ther hand, the transfer of property other than agricultural land, registrations of deeds and documents and contracts other than for agricultural lands, fall under the concurrent list or list III of the 7th schedule to the Constitution of India, which falls under the concurrent list.

Furthermore, since India is a country with diverse laws relating to devolution, inheritance etc, therefore, besides codified laws, it has a great impact on various customs and practices. Through the years, judicial precedents have adjudicated various aspects relating to real estate, which are either binding or have persuasive value, depending upon the forum/court in which it is adjudicated. 

The following are some key legislation governing real state in India. 

  1. Transfer of Property Act 

  2. Indian Assessment Act 

  3. Registration Act and the Indian Stamp Act 

  4. The Indian Contract Act

  5. Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act 2012 

  6. Land Revenue Codes

  7. The RERA Act

  8. Foreign Exchange Management Act and Foreign Direct Investment Policy

Laws pertaining to real estate in the USA

In the United States of America, every state follows a combination of statutory and common laws. The laws in the USA are structure in the following way:

  1. Federal

  2. State

  3. Local

As per the Common law system, when it comes to bringing changes in laws, equal weight is

given to judicial precedents and new legislations. Courts generally rely on the document’s express provisions unless the parties’ intent is ambiguous.

The U.S. courts can review the conduct of the parties if the terms of the document at issue are not clear. Contracts for the sale or transfer of real estate should always be concluded in writing.

Laws pertaining to real estate in the UK

Real estate in England and Wales is underpinned by two main pieces of legislation:

  1. The Law of Property Act 1925 and

  2. The Land Registration Act of 2002

To consolidate and modernise property laws in England and Wales, the 1925 Act introduced

significant changes to pre-existing real estate law. It is far-reaching and sets out general

concepts, such as the property and land interests that may exist under the law, land ownership and many of the rights and responsibilities in respect to it, which must be registered with a governments land registry. 

These two acts, however, are not all-inclusive and different aspects of real estate law and

the procedure, such as the execution formalities for contracts and deeds, are regulated by other laws.