The promoter mortgaged my flat after signing the agreement. Does that charge bind me?

Answered by Advocate Sharan Jain··RERA & Homebuyer Disputes

Legal Shorts · 59 words

Section 11(4)(h) protects allottee rights against a mortgage or charge the promoter creates after executing the agreement for sale. Establish the actual security-creation date and unit details. An earlier mortgage needs separate analysis, and a RERA complaint should not be assumed to stay a lender's enforcement action. A charge created before the agreement for sale falls outside this protection.

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Check the dates before accepting the lender's statement that its charge necessarily defeats your purchase. Section 11(4)(h) says that after executing an agreement for sale, the promoter must not mortgage or create a charge on that apartment, plot or building. If such a mortgage or charge is created, the provision says it must not affect the rights and interests of the allottee who has taken or agreed to take it.

Why does the agreement date matter?

The protection is framed around a mortgage or charge created after execution of the agreement for sale. Obtain the signed agreement, registration details where applicable, mortgage or charge documents and the lender's enforcement notice. A later notice does not necessarily mean the charge itself was created later.

Prepare a chronology using document dates and registration or filing records. Distinguish the date the loan was sanctioned, the date the security was created and the date you first learned of it. Confusing those dates can lead to the wrong legal argument.

What if the project loan existed before my agreement?

Do not apply the post-agreement rule mechanically to a pre-existing mortgage. Earlier encumbrances, lender consent, unit release arrangements and the promoter's disclosures require separate analysis. Ask for the relevant no-objection or release documents and verify which unit and security they cover.

A general bank letter may not release your particular apartment. Likewise, a receipt showing that you paid the promoter is not automatically proof that the lender released its charge. The adviser needs the complete security-and-sale chain.

What should I ask the promoter for?

Request the encumbrance disclosure, loan and security particulars affecting the property, unit-specific release status and the explanation for any post-agreement charge. Section 4's registration disclosures include legal title and encumbrance information. Compare those disclosures with the agreement and lender records.

Keep the request factual. State the unit, agreement date and notice received. Ask for documentary clarification rather than relying on an assurance that the bank will handle it internally. If the promoter's answer changes, preserve each version.

Can RERA cancel the bank's enforcement notice?

Do not assume that a RERA complaint is the correct or complete remedy against every lender enforcement measure. The promoter's statutory breach and the forum for challenging a particular bank action are distinct questions. The nature of the lender's proceeding and available legal remedies need urgent assessment.

Take the actual notice to an adviser promptly, especially where possession or auction steps are threatened. Do not wait for the promoter to resolve the matter informally while a separate deadline runs. A RERA filing should not be assumed to stay bank proceedings automatically.

Which evidence protects the allottee's position?

Collect the allotment, agreement, payment trail, property description, possession documents if any, project disclosures and all lender communications. Identify the exact property covered by the charge. A project-wide description and an individual apartment description may require careful reconciliation.

If other buyers have similar notices, coordinate document collection, but keep each agreement and payment history separate. Different purchase dates or release documents can produce different legal positions within the same building.

What should I do now?

Prepare a dated security-and-sale chart and request the missing charge and release records. Ask the adviser to assess the section 11(4)(h) protection, promoter liability and the proper response to the lender's actual action.

The practical mistake is arguing only that you paid in good faith. That fact matters, but the statutory protection depends on a more precise record: what was agreed, when the charge arose, which property it covers and which forum can grant the urgent relief needed.

This article is for general informational purposes only and does not constitute legal advice. Consult a qualified advocate for advice on your specific situation.

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Sources

The law this answer relies on, so you can read it yourself.

  1. 1.Real Estate (Regulation and Development) Act, 2016: sections 4(2)(l),11(4)(h),31. Read the source

The short answer's sources were checked on 29 September 2026. Statutes and judgments can change, so check the current position before you act on anything here.

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Answered by

Advocate Sharan Jain

Advocate based in Bangalore, practising before the Karnataka High Court and District, Sessions, Consumer and Family courts. Answers public legal questions to make Indian law more accessible.

This answer is general information on Indian law as at October 1, 2026, published for public education. It is not legal advice, it does not take account of your facts, and reading it does not create an advocate-client relationship. Law changes and every case turns on its own circumstances. Please consult a qualified advocate about your own matter.

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