The banks have started rethinking about their exposures in real estate. Punjab National Bank has already frozen their loans to real estate. The global melt down in the financial markets consequent to the sub-prime lending fiasco in the US market has sent lightning through the spine of bankers. No doubt the bubble is taking its shape to burst unless further growth is prevented. The lessons from East Asian Countries are good evidences of real estate meltdowns consequent to financial market crisis. It would be interesting to take a journey through the risky territories of this high profile high return credit portfolio of banks.
Traditionally, real estate finance has been a lucrative area not only to commercial bankers but even for the indigenous bankers and village money lenders. During olden days farmers used to mortgage their land with the Zamindars by simply handing over the title deeds and signing a promissory note. The passing of Transfer of Properties Act, 1882 gave a legal frame work for transfer of properties and prevented illegal transfers. The Act extensively covers mortgages, leases and exchanges. Sections 58 to 104 of the Act well explain the legal requirements to make a mortgage effective. Chapters I and II of the act also deal with the requirements to be complied with for making the transfer of properties effective. A bank which extends real estate finance against the security of landed property usually ensures that all these legal requirements are complied with prior to sanctioning the loans. Still the banks run into various risks while financing the real estate sector.
One of the major risks is the legal risk. The legal risk arise out of the non-enforceability of the documents executed by the borrower. This situation may arise due to various reasons such as lack of proper title, non-compliance of legal formalities, inadequate stamp duty, incompetency of the owners to mortgage, restrictive covenants in the document of title to property etc. Banks do exercise vigilance against the legal risk by getting the documents scrutinized by the bank’s legal counsel and further scrutiny by the banks’ own legal officers. Despite all these precautions there are numerous instances where the borrowers could defraud the banks. In some cases even the documents presented happened to be fake which were made with the connivance of the officials of the Registration Department. One of the precautionary measures which banks take is by obtaining non-encumbrance certificate from the Registration Department. If the loan is taken against a registered mortgage, the non-encumbrance certificate will show the details of mortgages. But the mortgage by deposit of title deeds will never appear in the non-encumbrance certificate issued by the registration department. Though the original documents are held by the bank which financed the loan, the borrower manages to get another copy with the help of the officials in the registration department and produce this document before another bank for raising loans. (In Tamil Nadu, a few years ago even the Registrar was a party to such fraud. In Kerala a number of fake Pattayams issued by the revenue officials were confiscated during a raid conduct by the government last year.) When the documents are proven to be fraudulent, the financing bank loses the chance of exercising its right over the property.
Another case of legal risk is certain restrictive covenants in the original document. For example in a Partition Deed, there may be clause preventing the alienation of certain part of the property which is set apart for a specific purpose. But in subsequent documentation this portion may be conveniently omitted without producing the original Partition Deed stating that the original held by another family member and producing a certified copy. The certified copy is provided by the Registration Department and with the connivance of the Department Staff any manipulation could be done. Similarly there could be minor’s right. Section 20 of Transfer of Property Act provides certain benefits to an unborn child which is in the mother’s womb. If the documents are manipulated, the opinion provided by the legal counsel may go wrong. Generally 30 years chain of documents is normally examined by the legal counsel. But in certain cases dilution is permitted by banks, which can turn to be risky on a later date.
Now the major exposures of banks are against builders. The flat culture has given birth to a number of builders who constructs flats and sell to those who are in need. Initially, the constructions were done according to demand. This culture has now been changed to building flats and selling to those who are in need which necessitated extensive marketing of the villas and flats. Many of these firms have tied up with celebrities to market their product by paying hefty sum as remuneration for playing the role as brand ambassadors. There are also firms which sponsors realty shows by offering exorbitant prizes. All these costs are loaded to the flats and villas making them much costly and common man may not be able to afford them. Consequently, the market narrows down and the income generation slows down. On the other hand these groups acquire more land and continue constructions by borrowing from banks and taking advances from prospective buyers. There are many instances where builders vanished from the scene with the money they collected from the prospective buyers, leaving the project half way resulting into default of the loans taken from banks. Often, the whereabouts of these people may not be known as either they cross the boarders of the country or live in anonymity elsewhere. While the large fishes survive the strong current, small fishes quickly vanishes from the scene taking with them the hard-earned money of poor people. Unless banks take urgent measures to prevent the unbridled expansion of building activities at the cost of funds borrowed from them, another bubble may burst soon.
Another class of borrowers who have availed loans for purchasing houses/flats is the employees and salaried class. The boom in the IT and financial sector during the last few years really pushed the earnings of employees to five or six figures. Even fresh graduates from technical institutions and business schools are absorbed by multinationals by offering exorbitant pay and fringe benefits. Take for example the salary offered by the bankrupt investment banker Lehman Brothers to IIM graduates. The reports show that they had offered as high as Rs.18 lakhs per annum. An ISB student was absorbed by another consulting firm by offering more than Rs.1 crore per annum. Now consequent to the meltdown in the financial markets, the MNCs have started downsizing operations. The report shows that HSBC is planning to lay off around 1100 employees. Lehman’s Indian operations have around 2000 employees and all of them have been served with termination letters (www.indianexpress.com, 17.092008). Considering the lay off by Merrill Lynch, Morgan Stanley, Washington Mutual Funds together with that by the IT and ITES firms and BPOs, the number of outgoing employees at different levels would be substantial. A majority of them might have availed of housing loans from banks and financial institutions. Considering the fat pay they were receiving from their previous employers, their exposure in the housing loan may be substantially high. Consequently, they may find it difficult to pay back the funds borrowed, even if a substitute employment is offered to them because in the current market condition no firm can afford to pay such hefty amount as pay and perks. Hence banks have to expect severe repayment problems from this class unless they have already securitized these loans.
The liquidity in the market is highly affected by the meltdowns. Consequently, the disposable funds with investors have come down substantially. The market may experience severe resource crunch and the banks may have to with draw from lending to certain sectors. Many of the realtors have started their expansion process and would now find it difficult to scale down. India’s largest realtor DLF is said to be in the process of raising $750 million through their associate company DLF Asset from JP Morgan. They had loan exposures with DE Shaw and Lehman. DLF may afford this but what about the smaller ones? Many of them will find it continue their building activity since the borrowing cost may go up and it would become uneconomical them to sell the flats/villas at the already agreed prizes. Consequently many of them may leave the scene ending up with losses to the lenders and clients.
Now what can be done the best? Firstly, the banks and financial institutions should persuade the builders to sell the flats as quick as possible. Secondly, instead of stalling the whole construction activities they may finance the building activities in a selective manner. Thirdly, banks may enforce their title at the earliest in the case of properties which are mortgaged to them and where they find that the borrowers have dropped the project. This step will enable the banks to save the interest cost
Traditionally, real estate finance has been a lucrative area not only to commercial bankers but even for the indigenous bankers and village money lenders. During olden days farmers used to mortgage their land with the Zamindars by simply handing over the title deeds and signing a promissory note. The passing of Transfer of Properties Act, 1882 gave a legal frame work for transfer of properties and prevented illegal transfers. The Act extensively covers mortgages, leases and exchanges. Sections 58 to 104 of the Act well explain the legal requirements to make a mortgage effective. Chapters I and II of the act also deal with the requirements to be complied with for making the transfer of properties effective. A bank which extends real estate finance against the security of landed property usually ensures that all these legal requirements are complied with prior to sanctioning the loans. Still the banks run into various risks while financing the real estate sector.
One of the major risks is the legal risk. The legal risk arise out of the non-enforceability of the documents executed by the borrower. This situation may arise due to various reasons such as lack of proper title, non-compliance of legal formalities, inadequate stamp duty, incompetency of the owners to mortgage, restrictive covenants in the document of title to property etc. Banks do exercise vigilance against the legal risk by getting the documents scrutinized by the bank’s legal counsel and further scrutiny by the banks’ own legal officers. Despite all these precautions there are numerous instances where the borrowers could defraud the banks. In some cases even the documents presented happened to be fake which were made with the connivance of the officials of the Registration Department. One of the precautionary measures which banks take is by obtaining non-encumbrance certificate from the Registration Department. If the loan is taken against a registered mortgage, the non-encumbrance certificate will show the details of mortgages. But the mortgage by deposit of title deeds will never appear in the non-encumbrance certificate issued by the registration department. Though the original documents are held by the bank which financed the loan, the borrower manages to get another copy with the help of the officials in the registration department and produce this document before another bank for raising loans. (In Tamil Nadu, a few years ago even the Registrar was a party to such fraud. In Kerala a number of fake Pattayams issued by the revenue officials were confiscated during a raid conduct by the government last year.) When the documents are proven to be fraudulent, the financing bank loses the chance of exercising its right over the property.
Another case of legal risk is certain restrictive covenants in the original document. For example in a Partition Deed, there may be clause preventing the alienation of certain part of the property which is set apart for a specific purpose. But in subsequent documentation this portion may be conveniently omitted without producing the original Partition Deed stating that the original held by another family member and producing a certified copy. The certified copy is provided by the Registration Department and with the connivance of the Department Staff any manipulation could be done. Similarly there could be minor’s right. Section 20 of Transfer of Property Act provides certain benefits to an unborn child which is in the mother’s womb. If the documents are manipulated, the opinion provided by the legal counsel may go wrong. Generally 30 years chain of documents is normally examined by the legal counsel. But in certain cases dilution is permitted by banks, which can turn to be risky on a later date.
Now the major exposures of banks are against builders. The flat culture has given birth to a number of builders who constructs flats and sell to those who are in need. Initially, the constructions were done according to demand. This culture has now been changed to building flats and selling to those who are in need which necessitated extensive marketing of the villas and flats. Many of these firms have tied up with celebrities to market their product by paying hefty sum as remuneration for playing the role as brand ambassadors. There are also firms which sponsors realty shows by offering exorbitant prizes. All these costs are loaded to the flats and villas making them much costly and common man may not be able to afford them. Consequently, the market narrows down and the income generation slows down. On the other hand these groups acquire more land and continue constructions by borrowing from banks and taking advances from prospective buyers. There are many instances where builders vanished from the scene with the money they collected from the prospective buyers, leaving the project half way resulting into default of the loans taken from banks. Often, the whereabouts of these people may not be known as either they cross the boarders of the country or live in anonymity elsewhere. While the large fishes survive the strong current, small fishes quickly vanishes from the scene taking with them the hard-earned money of poor people. Unless banks take urgent measures to prevent the unbridled expansion of building activities at the cost of funds borrowed from them, another bubble may burst soon.
Another class of borrowers who have availed loans for purchasing houses/flats is the employees and salaried class. The boom in the IT and financial sector during the last few years really pushed the earnings of employees to five or six figures. Even fresh graduates from technical institutions and business schools are absorbed by multinationals by offering exorbitant pay and fringe benefits. Take for example the salary offered by the bankrupt investment banker Lehman Brothers to IIM graduates. The reports show that they had offered as high as Rs.18 lakhs per annum. An ISB student was absorbed by another consulting firm by offering more than Rs.1 crore per annum. Now consequent to the meltdown in the financial markets, the MNCs have started downsizing operations. The report shows that HSBC is planning to lay off around 1100 employees. Lehman’s Indian operations have around 2000 employees and all of them have been served with termination letters (www.indianexpress.com, 17.092008). Considering the lay off by Merrill Lynch, Morgan Stanley, Washington Mutual Funds together with that by the IT and ITES firms and BPOs, the number of outgoing employees at different levels would be substantial. A majority of them might have availed of housing loans from banks and financial institutions. Considering the fat pay they were receiving from their previous employers, their exposure in the housing loan may be substantially high. Consequently, they may find it difficult to pay back the funds borrowed, even if a substitute employment is offered to them because in the current market condition no firm can afford to pay such hefty amount as pay and perks. Hence banks have to expect severe repayment problems from this class unless they have already securitized these loans.
The liquidity in the market is highly affected by the meltdowns. Consequently, the disposable funds with investors have come down substantially. The market may experience severe resource crunch and the banks may have to with draw from lending to certain sectors. Many of the realtors have started their expansion process and would now find it difficult to scale down. India’s largest realtor DLF is said to be in the process of raising $750 million through their associate company DLF Asset from JP Morgan. They had loan exposures with DE Shaw and Lehman. DLF may afford this but what about the smaller ones? Many of them will find it continue their building activity since the borrowing cost may go up and it would become uneconomical them to sell the flats/villas at the already agreed prizes. Consequently many of them may leave the scene ending up with losses to the lenders and clients.
Now what can be done the best? Firstly, the banks and financial institutions should persuade the builders to sell the flats as quick as possible. Secondly, instead of stalling the whole construction activities they may finance the building activities in a selective manner. Thirdly, banks may enforce their title at the earliest in the case of properties which are mortgaged to them and where they find that the borrowers have dropped the project. This step will enable the banks to save the interest cost
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