What is the legal process to resell an under-construction flat before possession?

Question

I booked a flat in a project that is still under construction, and I now want to sell my booking to another buyer. What is the legal process? I have been reading conflicting things online and I would like to understand what Indian law actually says about this, which Act and Section applies, what the realistic timelines and costs are, and what I should be doing right now to protect my position. If the matter can be resolved without litigation I would prefer that route, but I want to know what my rights are before I agree to anything or sign any document.

MyVakeel Legal Desk · Accepted Answer

What is the legal process to resell an under-construction flat before possession? is governed in India primarily by Real Estate (Regulation and Development) Act 2016, Section 15, Transfer of Property Act 1882, Section 54 and Indian Stamp Act 1899, Section 3. The short answer is set out below, followed by the practical steps most people in this situation need to take. Read it alongside the specific provisions named, because the exact relief available to you turns on the facts you can prove on paper.

Section 15 of RERA requires the promoter's prior written consent before an allottee can transfer their rights and liabilities in an under-construction unit to a third party, and such transfer does not affect the original registration.

Since no sale deed has yet been executed, the original buyer only holds a contractual right under the agreement for sale, so the resale is typically structured as a tripartite assignment or nomination agreement among the builder, original buyer and new buyer.

Any consideration received for the resale, along with the transfer of the agreement for sale, requires proper documentation and adequate stamp duty on the assignment or nomination deed under the applicable state stamp schedule.

Capital gains implications differ depending on whether the right to acquire the flat is treated as a short-term or long-term capital asset based on the holding period from the date of the original allotment or agreement.

The final sale deed at the time of possession must be executed directly between the builder and the new buyer, incorporating the earlier assignment, to ensure the ultimate conveyance is valid and registered under Section 17 of the Registration Act.

What to do next: 1) Obtain the builder's written consent for transfer as required under Section 15 of RERA; 2) Execute a properly stamped tripartite assignment or nomination agreement; 3) Update the RERA project records and builder's allotment register with the new buyer's name; 4) Ensure the final registered sale deed is executed in favour of the new buyer at possession.

If the other side has already issued a notice, filed a case or set a deadline, treat the matter as time-sensitive — most remedies under Real Estate (Regulation and Development) Act 2016, Section 15 carry limitation periods, and a delay you cannot explain weakens an otherwise strong case. You can post the details on the MyVakeel forum for a practising advocate to review, or book a paid consultation with a Bar Council verified lawyer in this practice area.