Harmonising Maharashtra's Real Estate Laws: An Analysis of the MOFA Amendment Act, 2025

The enactment of the central Real Estate (Regulation and Development) Act, 2016 (“RERA”) created a significant regulatory overlap with the state-level Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (“MOFA”). This duality led to jurisdictional confusion for homebuyers, promoters, and authorities. To resolve this, the Maharashtra Government has passed the Maharashtra Ownership Flats (Amendment & Validation) Act, 2025 (“the Amendment Act”), a critical piece of legislation designed to harmonise the two laws and establish a clear and coherent regulatory framework for the state's real estate sector. This article examines the key features of the Amendment Act, its practical implications, and the constitutional questions that may shape its future interpretation.

Resolving Jurisdictional Overlap: Insertion of Section 1A

The cornerstone of the Amendment Act is the insertion of a new Section 1A into MOFA. With retrospective effect from 1 May 2016, the date on which RERA came into force, this section expressly provides that the provisions of MOFA shall not apply to real estate projects that are registered under RERA. This provision decisively establishes RERA as the primary governing statute for all registered projects in Maharashtra, thereby eliminating the longstanding problem of dual regulation.

However, the exclusion is not absolute. The Amendment Act preserves the applicability of specific provisions of MOFA, namely Sections 5A, 11A, 13B, 13C, and 13D of MOFA, along with other provisions related to the MOFA Competent Authority. This ensures that MOFA continues to apply to projects that fall outside the scope of RERA such as projects under 500 square meters or with fewer than eight apartments, as contemplated under Section 3 (2) (a) of RERA.

Through this calibrated approach, the legislature has attempted to strike a balance, ensuring regulatory clarity while retaining essential protections for homebuyers.

Deemed Conveyance and RERA Projects: Statutory Preservation of a Vital Remedy

One of MOFA’s most powerful consumer protection mechanisms has historically been the unilateral deemed conveyance under Section 11. This remedy enabled housing societies to obtain title to land and buildings in cases where promoters failed or refused to execute conveyance deeds.

Following the enactment of RERA, which contains its own conveyance obligation under Section 17, serious ambiguity arose as to whether the MOFA remedy of deemed conveyance remained available for RERA-registered projects. Promoters frequently argued that RERA constituted a complete code, thereby impliedly excluding recourse to MOFA.

The Amendment Act conclusively resolves this uncertainty through the introduction of a new Section 11A in MOFA. Section 11A specifically addresses RERA-registered projects and provides that where a promoter fails to comply with the obligation under Section 17 of RERA to execute a registered conveyance deed, the allottee or the association of allottees may apply to the MOFA Competent Authority for a unilateral deemed conveyance.

Crucially, such applications are to be processed in accordance with sub-sections (4) and (5) of Section 11 of MOFA, thereby retaining the established procedural framework that has been tested through decades of administrative and judicial practice.

Conceptual Significance of Section 11A

The legislative innovation of the Amendment Act does not lie in the creation of a new substantive right, but in the explicit statutory preservation of an existing and effective remedy within the RERA regime. Section 11A bridges the operational gap between RERA’s obligation-based framework and MOFA’s enforcement-oriented machinery.

By doing so, the Amendment Act transforms what was previously a point of legal contention into a clear and enforceable right. Homebuyers and housing societies in RERA-registered projects are no longer left to rely solely on regulatory enforcement mechanisms; they retain access to the unilateral deemed conveyance route, ensuring that title can be secured even in the face of promoter inaction or non-cooperation.

Validations of Past Actions and Ensuring Legal Certainty

Another critical feature of the Amendment Act is its validation and savings provision, contained in Section 5. This clause validates all actions, orders, notifications, and deemed conveyances issued under MOFA prior to the commencement of the Amendment Act, notwithstanding the registration of the relevant projects under RERA.

This provision is of considerable practical importance. During the years of regulatory overlap, numerous housing societies obtained deemed conveyance orders from MOFA authorities. Absent a validation clause, these actions would have been vulnerable to challenge on the ground of lack of jurisdiction.

By retrospectively validating such actions, the legislature has ensured continuity, protected vested rights, and forestalled a wave of avoidable litigation, thereby reinforcing legal certainty in the sector.

Penal Provisions and Enforcement: Avoiding Double Jeopardy

The Amendment Act also implies the application of penal provisions. While Section 13 of MOFA, which details offences by promoters, has not been repealed, its applicability is now read in light of RERA’s overriding framework. Section 89 of RERA gives the central act overriding effect in case of any inconsistency with other laws. Accordingly, for RERA-registered projects, the comprehensive penal and enforcement framework established under RERA will be the primary mechanism for addressing promoter’s defaults. This interpretative approach avoids the risk of parallel or duplicative penal proceedings under both statutes for the same conduct, while preserving MOFA’s relevance for non-RERA projects.

A Potential Constitutional Hurdle: The Question of Presidential Assent

Despite its clear intent to harmonise state and central laws, the Amendment Act faces a potential constitutional challenge that could undermine its objectives. The issue stems from the absence of Presidential assent under Article 254 of the Constitution of India.

Real estate regulation implicates subjects in the Concurrent List, including transfer of property and contracts. Where a state law is repugnant to a central law occupying the same field, the central law prevails unless the state law has received Presidential assent. RERA, being a central enactment, also contains a specific provision in Section 89 giving it an overriding effect over inconsistent laws.

The argument against the Amendment Act is that, by amending MOFA in a field comprehensively governed by RERA, the state legislature has enacted a repugnant law without securing Presidential assent, thereby rendering the amendment vulnerable.

However, a compelling counter-argument exists. Section 88 of RERA expressly provides that its provisions are in addition to, and not in derogation of, other laws in force. On this reading, the Amendment Act does not contradict RERA but supplements it by providing a procedural enforcement mechanism namely, unilateral deemed conveyance, to give effect to RERA’s substantive right under Section 17. By providing this mechanism, the state law is merely supplementing the central act, which is permissible under Section 88 of RERA.

Whether the Amendment Act is ultimately characterised as supplementary or repugnant will depend on judicial interpretation. Until such determination, the constitutional validity of the amendment remains an open question.

Balancing Reforms with Constitutional Discipline

The Maharashtra Ownership Flats (Amendment & Validation) Act, 2025 represents a measured and purposive legislative response to the complexities arising from the coexistence of MOFA and RERA. By clearly demarcating jurisdiction, affirming the primacy of RERA for registered projects, and simultaneously preserving MOFA’s most effective consumer protection mechanism, the Amendment Act enhances clarity, predictability, and fairness in the regulatory framework.

The amendment will significantly strengthen the position of homebuyers in Maharashtra by ensuring that statutory rights under RERA are backed by robust and time-tested enforcement remedies. In that sense, the Amendment Act is less a departure from existing law and more an exercise in careful harmonisation, aligning state and central legislation to serve the shared objective of consumer protection in real estate transactions.