Acquisition of Immovable Property – FEMA

ACQUISITION AND TRANSFER OF IMMOVABLE PROPERTY IN INDIA

The Foreign Exchange Management Act, 1999 (FEMA) and the Regulations notified by the Reserve Bank of India (RBI), regulates the acquisition and transfer of immovable property in India by Persons resident outside India.

A.      Acquisition of immovable property by NRI/OCI

 ·       NRI/OCI can acquire immovable property in India without prior approval of RBI (under general permission) in the following manner:

Sr. No.

Nature of Property

Acquisition mode

Permissible to acquire From

 

1

Agricultural land/ farmhouse/ plantation etc.

Purchase/Gift

Not allowed

Inheritance

Any person resident in India and outside India


2

Property other than agricultural land/ farmhouse/ plantation etc.

Purchase

Resident/ NRI/ OCI

Gift

Resident/ NRI/ OCI - who is a relative

Inheritance

Any person resident in India and outside India

 ·       Further, NRI/OCI can transfer immovable property in India under general permission in the following manner:

Sr. No.

Nature of Property

Transfer mode

Permissible to transfer To

 

1

Agricultural land/ farmhouse/plantation etc.

Sell/Gift

Resident


2

Property other than agricultural land/ farmhouse/plantation etc.

Sell/Gift

Resident/ NRI/ OCI

 

 ·     The consideration to acquire/purchase the immovable property should be made out of the following:

a.    Foreign inward remittance

b.  Balances held in Non-Resident (Ordinary) account (NRO account)/Non-Resident (External) account (NRE account)/ Foreign Currency Non-Resident account (FCNR account)

c.    Housing loan can be availed from Authorised Dealer (AD) Bank or a housing finance institution in India.

 ·      The payments cannot be made either by traveller’s cheque or by foreign currency notes or by any other mode other than those specified above.

B.      Joint Acquisition by the spouse of a NRI/OCI

     Foreign national resident outside India, can acquire one immovable property (other than agricultural land/ farm house/ plantation property) jointly with spouse who is NRI or OCI, subject to below conditions:

·      The consideration is paid only through the modes specified above

·      The marriage has been registered and subsisted for continuous period of atleast 2 years

·      The non-resident spouse is not otherwise prohibited from such acquisition (see para E below)

C.      Acquisition by a Long Term Visa holder

A person who is citizen of Afghanistan, Bangladesh or Pakistan belonging to minority namely, Hindu, Sikh, Buddhist, Jain, Parsis and Christians and residing in India under Long Term Visa can acquire one residential house for self – occupation and one immovable property for carrying on self-employment, subject to specified conditions.

D.     Acquisition/Transfer by Foreign Embassies/Diplomats/Consulate Generals

Foreign Embassy/Diplomat/Consulate General, can purchase/sell immovable property (other than agricultural land/plantation property/farm house) in India provided:

·     Clearance from the Government of India, Ministry of External Affairs is obtained for such purchase/sale, and

·     The consideration for acquisition of immovable property in India is paid out of funds remitted from abroad through banking channels.

E.     Acquisition/Transfer by Foreign Nationals (other than OCI cardholder)

·     Foreign Nationals of 11 Countries:

Citizens of Pakistan, Bangladesh, Sri Lanka, Afghanistan, China, Iran, Nepal, Bhutan, Macau, Hong Kong or Democratic People’s Republic of Korea (DPRK),

a.    Irrespective of their residential status, cannot acquire or transfer immovable property in India, without prior RBI permission.

b.    However, they can acquire immovable property by way of lease, not exceeding five years. 

·     Foreign Nationals of other countries:

     a.    Foreign nationals of non-Indian origin resident in India can acquire immovable property in India.

     b.    Foreign nationals of non-Indian origin resident outside India cannot acquire/ transfer immovable property in India except by way of inheritance from a resident or by way of lease not exceeding five years.

F.       Acquisition of Immovable Property for carrying on permitted activity

A person resident outside India who has established branch in India can acquire immovable property which is necessary for or incidental to carry on such activity. The person resident outside India can also mortgage the said property.

Further, such person resident outside India has to file a declaration in Form IPI with the Reserve Bank within ninety days from the date of acquisition of immovable property;

However, person of 11 countries mentioned in point E above will require prior RBI permission if such property is to be acquired for period exceeding five years. 

1.   Exceptional Cases:

·      A person resident outside India can continue to hold, transfer any immovable property situated in India if such property was acquired, held or owned by him/her when he/she was resident in India or inherited from a person resident in India.

·      Any existing holding of immovable property in India by a person resident outside India made in accordance with the applicable regulation at the time of such acquisition would not require any further compliance/permission.

2.   Typical Guidance:

·        NRIs/PIOs can remit the sale proceeds of immovable property in India subject to certain conditions and payment of applicable taxes.

·        Transfer of immovable property has to be routed through banking channels in India only. Direct payment from a Person resident outside India to another Person resident outside India is not permitted.

·        It is advisable to obtain Foreign Inward Remittance Certificate (FIRC) and documents evidencing repayment of loan in foreign exchange to facilitate smoother repatriation process at later stage.


Updated 01/2023